Obama Admin Urges Supreme Court to Vacate Greenhouse Gas ‘Nuisance’ Ruling
By GABRIEL NELSON of Greenwire
The Obama administration has urged the Supreme Court to toss out an appeals court decision that would allow lawsuits against major emitters for their contributions to global warming, stunning environmentalists who see the case as a powerful prod on climate change.
In the case, AEP v. Connecticut, the 2nd U.S. Circuit Court of Appeals sided with a coalition of states, environmental groups and New York City. The decision, handed down last year, said they could proceed with a lawsuit that seeks to force several of the nation’s largest coal-fired utilities to reduce their greenhouse gas emissions.
The defendants — American Electric Power Co. Inc., Duke Energy Corp., Southern Co. and Xcel Energy Inc. — filed a petition for review with the Supreme Court earlier this month, asking the court to reject the argument that greenhouse gas emissions can be addressed through “public nuisance” lawsuits (Greenwire, Aug. 4).
In a brief (pdf) filed yesterday on behalf of the Tennessee Valley Authority, acting Solicitor General Neal Katyal agreed with the defendants, saying that U.S. EPA’s newly finalized regulations on greenhouse gases have displaced that type of common-law claim.
Katyal urged the court to vacate the decision and remand the case to the 2nd Circuit for further proceedings, this time taking into account the administration’s push to regulate greenhouse gases under the Clean Air Act.
The 2nd Circuit’s decision rested on the assertion that “EPA does not currently regulate carbon dioxide,” but that has since changed. The Obama administration has finalized several regulations in response to the Supreme Court’s 2007 decision in Massachusetts v. EPA, which told the agency to decide whether greenhouse gases were pollutants under the Clean Air Act.
…
Matt Pawa, an attorney representing plaintiffs in the case, said he and his colleagues expected the White House to stay out of the matter. During a meeting with more than 30 administration lawyers at the solicitor general’s office on June 24, it seemed they had “a lot of friends in the room,” he said.
“We feel stabbed in the back,” Pawa said. “This was really a dastardly move by an administration that said it was a friend of the environment. With friends like this, who needs enemies?”
Top attorneys at environmental advocacy groups are buzzing about the brief, sources say. Some feel betrayed by a White House that has generally been more amenable to environmental regulation than its predecessor.
“This reads as if it were cut and pasted from the Bush administration’s briefing in Massachusetts,” said David Bookbinder, who served as the Sierra Club’s chief climate counsel until his resignation in May.
read the entire story here at the NYT
It’s becoming very discouraging when places like Science Daily perpetuate mis-characterizations like this, ” CO2…the major greenhouse gas that contributes to global warming”. http://www.sciencedaily.com/releases/2010/08/100825174102.htm
CO2 is NOT a major greenhouse gas (not that I really know what that means in any case). It’s a trace gas in the atmosphere and water vapor is the ‘major greenhouse gas in our atmosphere.
I weary of constantly arguing with my friends about this sort of stuff. In the long run I lose because they get tired of listening to me.
REPLY: send it to the Union of Concerned Scientists…they want to hear about it. – Anthony
OMFG it’s a they-found-us-out-let’s-git-the-hell-out-of-here, but shows like a proper cameron-tale of let’s annoy the hell out of everyone ’til they want to get to g’there by show of my force and then, well then, ruuun you fools!
On a second thought, was he really tossing out CO2 or blue cameron too!
Step back and take a breath. I know the folks who drafted the US brief. They had no agenda at all. They simply argued the position the US has taken under every President for the past 50 years. That argument is simply that where Congress has occupied the legal landscape, the common law no longer applies. We have a Clean Air Act and agree with its use or not (and I don’t) where we have rules under the act to control green house gases there is no need for a tort nuisance claim under common law.
@ur momisugly George E. Smith says:
August 26, 2010 at 3:42 pm
George, I belief the Supreme Court ruling was that the EPA had the authority to regulate CO2 under the CAA. Not that they must do so. That opened the door for the EPA and Obama, but it did not shove them thru it. They walked thru on their own.
From: harrywr2 on August 26, 2010 at 2:31 pm
Hey, the outdoor cats are supposed to be taking care of those rodents. Don’t complain if they’re not getting them all, as all those cats were rescues and you should be glad I care enough about strays to take them in.
Yeah it looks like an abandoned field out there, but so what? I don’t pollute the ground water with fertilizers and weed killers, and I don’t waste fossil fuels by mowing it down until the dust flies at least once a week like the neighbors do. And the tall growth is more plant mass sucking more carbon dioxide out of the air and fighting global warming.
Why are you persecuting me for caring more about the planet and the life that’s on it than other people?! Now get off my field!
Carol Browner, head of Obama’s EPA.
Revenues. The Obama administration requires vast amounts of money in order to facilitate its agenda, and the cap & trade method was the “kinder, gentler” way for the industrial base. Sadly, the Senate didn’t go along.
OK, now revenues will be generated via EPA enforcement actions (read “fines” and “permit fees”). Here, read all about it:
http://www.epa.gov/oecaerth/civil/index.html
The Bush administration was a disaster for EPA Enforcement. The head of Civil Enforcement, Eric Schaeffer, resigned in 2002, in what was known as a severely demoralized blow to the agency. By bringing in Carol Browner and Lisa Jackson, Obama made his path clear from the outset.
harrywr2 says:
August 26, 2010 at 2:31 pm
Common Law allows me to sue anyone for some perceived damage to me.
I think I have been damaged because the plants in by garden are not growing as I think they should due to a shortage of CO2. I propose we sue the energy companies for not putting out ENOUGH Carbon Dioxide!
Any pro bono lawyers out there want to take on this case?
“We feel stabbed in the back,”
The wortld does not revolve around environmentalists. If they had already known that they would not feel this.
Henry chance says:
August 26, 2010 at 12:58 pm
The Sierra club is nearing a meltdown.
Do not bet good money on that.
I think its time Co2 was put in the dock and ask the EPA to prove its guilt.
If you read the “Brief” listed in Anthony’s post you’ll find the following (note: bolding added for emphasis):
link: http://www.eenews.net/assets/2010/08/25/document_gw_01.pdf
QUESTIONS PRESENTED
“Plaintiffs allege that significant emitters of carbon dioxide in 20 States have created, contributed to, or maintained a common-law public nuisance by contributing to global warming and thus injuring plaintiffs in their capacities as sovereigns or landowners. This brief addresses the following questions:
1. Whether plaintiffs’ federal common-law nuisance claims are barred by principles of prudential standing.
2. Whether, assuming plaintiffs have alleged cognizable public-nuisance claims under federal common law, that federal common law has been displaced in this con- text by the Clean Air Act and associated actions of the United States Environmental Protection Agency.”
STATEMENT (page 3):
“In addition, Section 111 of the Act authorizes EPA to list categories of stationary sources that “cause[], or contribute[] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. 7411(b)(1)(A). Once EPA exercises its discretion to list a category of stationary sources, Section 111 directs it to establish federal performance standards for emissions of pollutants specified by EPA from new (or modified) sources in that category. 42 U.S.C. 7411(b)(1)(B). Furthermore, in some circumstances, once EPA has established such new source performance standards (NSPS) for a category of sources, States are required by Section 111(d) to issue performance standards—in accordance with EPA procedures —for existing sources in that category.3″
“EPA may issue such standards directly if a State does not do so. 42 U.S.C. 7411(d); see also 40 C.F.R. 60.20-60.29 (establishing procedures for adoption of state plans).”
When you look up (or try to find) information about the regulations, you’ll find some of the following.
EPA Laws and Regulations — Abstracts for July 2010
http://www.epa.gov/lawsregs/search/ail.html
Action to Ensure Authority to Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions Federal Implementation Plan
“EPA is proposing a federal implementation plan (FIP) to apply in any state that is unable to submit, by its specified deadline, a corrective state implementation plan (SIP) revision to ensure that the state has authority to issue permits under the Clean Air Act’s New Source Review Prevention of Significant Deterioration (“PSD”) program for sources of greenhouse gases (“GHGs”). This proposal is a companion rulemaking to RIN 2060-AQ08 “Action to Ensure Authority to Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call,” which is being signed and published on the same schedule; EPA is proposing to make a finding of substantial inadequacy and proposing to issue a SIP call for a number of states on grounds that their SIPs do not apply the PSD program to GHG-emitting sources.”
see:
Regulations and Standards [for light and heavy duty vehicles including residential vehicles]
http://www.epa.gov/otaq/climate/regulations.htm
also see:
Final Rule: Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule
http://www.epa.gov/nsr/documents/20100413fs.pdf
The final rule addresses emissions of a group of six GHGs:
1. Carbon dioxide (CO2)
2. Methane (CH4)
3. Nitrous oxide (N2O)
4. Hydrofluorocarbons (HFCs)
5. Perfluorocarbons(PFCs)
6. Sulfur hexafluoride (SF6)
Some of these GHGs have a higher global warming potential than others. To address these differences, the international standard practice is to express GHGs in carbon dioxide equivalents (CO2e). Emissions of gases other than CO2 are translated into CO2e by using the gases’ global warming potentials. Under this rule, EPA is using CO2e as the metric for determining whether sources are covered by permitting programs. Total GHG emissions will be calculated by summing the CO2e emissions of all of the six constituent GHGs.
“Today’s final action and other background information are also available electronically at http://www.regulations.gov, EPA’s electronic public docket and comment system. The docket number for this action is Docket ID No. EPA-HQ-OAR-2009-0517.”
Note: 19,648 docket folder responses to the EPA-HQ-OAR-2009-0517 keyword will be found.
It’s very strange that the “Brief” listed in Anthony’s post only refers to CO2 and not the other 5 GHDs. But, one way or the other, EPA issued Regulation Abstract in July so complying with this mess isn’t likely to occur in January.
EPS has also proposed time tables for the various phases of regulation so don’t be fooled into thinking this only effects the largest emissions.
If they’d just drop CO2 from the list, sponsor programs to capture and use Methane for power generation, and bottle/distribute the N2O, we could all get a good laugh out of this mess.
@gcb
“If they managed to push this lawsuit through, they could go after other big CO2 emitters”
Maybe they are afraid someone would sue Gore et al, now there’s a public nuisance.
A lot of hopeful analysts above. I have an incredible reserve of respect for the power of the Obama power machine. Nothing seems to dissuade them, no matter what the repulsion. His will be done.
“”” D. W. Schnare says:
August 26, 2010 at 4:09 pm
Step back and take a breath. I know the folks who drafted the US brief. They had no agenda at all. They simply argued the position the US has taken under every President for the past 50 years. That argument is simply that where Congress has occupied the legal landscape, the common law no longer applies. We have a Clean Air Act and agree with its use or not (and I don’t) where we have rules under the act to control green house gases there is no need for a tort nuisance claim under common law. “””
Then you would be the perfect person to tell these fools that they had better include H2O in their list of noxious GHG nuisance gases; because it can easily be demonstrated that H2O vapor in air enhances the absorption of LWIR radiation and heats the air under such radiation; same as CO2 and those other gases on the list; and humans DO emit as much or even more H2O into the atmosphere as they do CO2.
So take care of that for us will you please ?
“”” Curiousgeorge says:
August 26, 2010 at 4:16 pm
@ur momisugly George E. Smith says:
August 26, 2010 at 3:42 pm
George, I belief the Supreme Court ruling was that the EPA had the authority to regulate CO2 under the CAA. Not that they must do so. That opened the door for the EPA and Obama, but it did not shove them thru it. They walked thru on their own. “””
Well I know that; but if I am not mistaken; the supremes blew the door off its hinges by declaring that CO2 was a global warming cause.
Maybe the news media has been mis informing us as to just what the Supremes did or did not decide. Anyone who thinks CO2 is a dangerous pollutant or in anyway hazardous as emitted by human operations; is in my view criminally insane; and needs to be in an asylum.
DWSchnare says:
August 26, 2010 at 5:24 pm
No, Schaeffer quitting did not deliver a severe demoralizing blow to the agency. We filled his position quickly with a DOJ senior manager and went on with our business. Eric just wanted to make a splash in order to promote his new role as an outside activist. He was hoping to hook up with the next administration but he picked the wrong horse and now no one ever hears from him. Meanwhile, those of us still prosecuting environmental scofflaws continue to do our business.
D.W. Schnare, Esq. Ph.D.
You can see where I work without searching too hard . . .
——-
REPLY: Thank you, Dr. Schnare. Nice meeting you. I have good friends in EPA Region V Enforcement.
Regarding the effect of Schaeffer’s resignation on the agency, I beg to differ:
http://www.sustainablefacility.com/Articles/Industry_News/53ba174b30f38010VgnVCM100000f932a8c0____
Since I don’t work for the USEPA, I only know what I’m told by others. During the Bush years, environmental enforcement seemed to be put into the laps of state and local jurisdictions. We’ve had some real battles in Region V.
Folks, the destruction of the enforcement arm of EPA under Bush was highly exagerrated. In a couple of those years we had the highest civil penalty counts ever, and the largest single penalty in the history of the agency was in that timeframe and was against a coal-fired power plant.
As for Buckheit, he left because it was to his own advantage. He had time and grade and wanted to sail his boat. As for Rich Biondi, he simply got to a point where he could afford to retire and he did. He had been sidelined into an administrative (associate director) position. He, like many of us, would like to have been in charge. That wasn’t going to happen so he headed home. Last time I saw him he was in the best of spirits and didn’t miss the job whatever, although I think he misses some of the staff with whom he worked for so many years.
As to the “study” to which CRS D.Ph cited, the PEER study was a joke. It reflected volunteer responses and the tiny few who did respond were the same bunch of left-handed wingnuts that always rise to such bait. (And don’t think we don’t have right-handed wingnuts too. After all, this is the government.)
As for me giving input on the endangerment finding, I have recused myself from that issue. That is a formal, legal step that keeps me away from the effort. I did so because I could not agree with the position of the Agency and I wanted to be able to speak publically on the subject. Soooooooooo, if you want to make EPA view H2O a greenhouse gas subject to regulation, go sue them. I’ll be cheering from the sidelines.
DWS
“Anyone who thinks CO2 is a dangerous pollutant or in anyway hazardous as emitted by human operations; is in my view criminally insane; and needs to be in an asylum.”
I have no sarcastic remark to lay at the foot of this mighty truth.
Chris in Ga says:
August 26, 2010 at 2:20 pm
All this action does is try to legitimize the EPA greenhouse gas ruling. What would happened – if during these trials – contrary evidence from the defense was publicized? I think they would rather not risk the exposure and will settle for legislation through the EPA.
Yep, and look for the EPA to justify the CO2 pollution through mean other then the IPCC
I think the guy/gal who released the climategate emails did the world a tremendous favor and it is showing everywhere….
“The Obama administration has urged the Supreme Court to toss out an appeals court decision that would allow lawsuits against major emitters for their contributions to global warming, stunning environmentalists who see the case as a powerful prod on climate change.”
================
Rather ironic, that the environmentalists get stunned by the same prod they intended to use.
Talk about a climate change.
We, on the dark side, are also environmentalists.
Yet, proceed from caution.
rbateman says:
August 26, 2010 at 1:11 pm
Allowing lawsuits to fly would be extremely injurious to public health:
If they do the temporary injunction route as they do to salvage logging, the result will be blackouts in the dead of winter.
Clear and present danger.
I like your comments. Except sometimes they are cryptic. What does this one mean?